[1] Hon. Shawn Richards [2] Hon. Timothy Harris [3] Hon. Eugene A. Hamilton [4] Hon. Mark Brantley Claimants v [1] The Constituency Boundaries Commission(Being Mr. R.A. Peter Jenkins, Hon. Asim Martin, Hon. Marcella Liburd Hon. Vance Amory, and Hon. Vincent Byron) [2] The Prime Minister of St. Christopher and Nevis [3] Attorney General of St Christopher and Nevis (in his capacity as Representative of His Excellency The Governor General) Defendants [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Ramdhani J |
| Judgment Date | 31 July 2014 |
| Judgment citation (vLex) | [2014] ECSC J0731-1 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | Claim No. SKBHCV2013/0241 |
| Date | 31 July 2014 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL) A.D. 2014
Claim No. SKBHCV2013/0241
In the matter of Section 49 and 50 of the Constitution of St. Christopher and Nevis
And in the matter of an Application for Declaratory, injunctive and Other Relief by the Hon Shawn Richards, the Hon Timothy Harris, the Hon Eugene Hamilton and the Hon Mark Brantley, pursuant to Section 96 of the Constitution of St. Christopher and Nevis
Mr. Douglas Mendes S.C. leading Mr. Michael Quamina instructed by Mr. Delara MacClure
Taylor and Ms. Talibah Byron for the Claimants
Mr. Anthony W. Astaphan S.C. leading Mr. Sylvester Anthony instructed by Ms. Angelina Gracy Sookoo for the 1 st Defendant.
Dr. Henry Browne Q.C. leading Mr. Sylvester Anthony instructed by Ms. Angelina Gracy Sookoo for the 2 nd Defendant.
Mr. Roger Forde Q.C. leading Mrs. Simone Bullen-Thompson Solicitor General instructed by Ms. Nisharma Rattan-Mack for the 3 rd Defendant.
Judicial Review — Constitutional Boundary Commission — Challenge to the Decision of the Boundary Commission Contained in Final Report — Relevant and Irrelevant Considerations — Whether the Commission took irrelevant Matters into Consideration — Bias — Whether the Appointment of the Chairman Tainted with Appearance of Bias — Consultation — No Expressed Constitutional, Statutory or Common duty Consult — Commission Embarking on Consultations — Whether Giving Rise to Legal Obligation to Consult — Whether Consultation Fair and Proper.
The Constituency Boundaries Commission of St. Kitts and Nevis being duly constituted in accordance with section 49 of the St. Kitts and Nevis Constitution began work on the 6 th August 2012, to carry out its mandate under section 50 of the Constitution to review and possibly present recommendations to the Governor General to change the number and or the boundaries of the constituencies in the Federation. Despite having no statutory or constitutional duty to consult, the Commission decided very early into their task to consult with all of the known political parties in the Federation. On the 5 th June 2013, the Commission sent letters to each of the political parties attaching the relevant provisions of the Constitution, a preliminary census data report, the decision of the High Court in the last boundary case which ended in a failed attempt to change certain boundaries, and invited each party to make presentations on whether the number and or boundaries of the existing constituencies should be changed and how such changes should be made. A deadline of the 17 th June 2013 for responses was given to the consultees. Several political parties responded and generally stated that no changes should be made to any constituency boundaries in the Federation. The first claimant in his response stated that the time given to respond was too short, and that in any event the Commission should not have any regard to the preliminary census data report as it was 'unreliable'. Further, he stated that the boundaries should not be changed. The second claimant also asked for more time to respond and raised a number of other issues including a complaint that the Chairman of the Commission was affected by bias having been inter alia a former activist of the ruling St. Kitts Nevis Labour Party. The other two claimants were not personally contacted but their parties were. On the receipt of these responses from the consultees the Commission extended the deadline for presentations to the 2 nd July 2013. There was no other presentation from the first claimant, but the second claimant gave a further presentation on the 1 st July 2013 again stating inter alia that no changes should be made to any of the boundaries. Political Parties in Nevis responded and actually engaged the Commission in discussions which led to a site visit in Nevis to 'better appreciate how certain changes could be made to Nevis. Three members of the Commission also prepared and submitted their individual presentations to the Commission. These members were the Hon. Marcella Liburd and the Hon. Asim Martin who each suggested some variation to change certain boundaries, and the Hon. Vincent Bryon who expressed the view that no boundaries should be changed.
On the 9 th July 2013, at a meeting of the Commission, the Chairman of the Commission prepared and shared with the other members of the Commission a document entitled a 'Review of Proposals' which was not only a review of the presentations received from those consultees who had responded, but also contained the Chairman's own recommendations for changes to a number of boundaries in St. Kitts. This 'Review of Proposals' document was shared with the members of the Commission for them to do as they saw fit, and it was agreed that the Commission would meet again on the 18 th July 2013 to discuss these proposals. Mr. Byron acting on his own shared the document with the claimants. Mr. Richards then held a number of public meetings in which he relied on the several proposals presented to the Commission by those members, including the Chairman who had been appointed on the advice of the Prime Minister, to criticize the Government for attempting to change the boundaries to 'gerrymander' the elections. In these public meetings he made clear reference to the 'Review of Proposals' document that had been prepared by the Chairman. These meetings were held over a period of at least several weeks.
On the 18 th July 2013, the Commission met again and agreed to prepare a draft report for circulation to all members for their input, approval or disapproval and then for signatures by members. It was agreed by a majority at that meeting that the recommendations of the Chairman contained in the 'Review of Proposals' document to change certain boundaries would be included in that report. At this very meeting, Mr. Vincent Byron requested that the Commission hold further consultations, including public consultations on the proposals that were now being considered by the Commission. The Commission did not agree to conduct any further consultations and in fact made a decision not to hold any public consultations. At this meeting, the Chairman advised that within a week he would have the draft report ready, and the meeting ended on that note; the members of the Commission then awaiting the draft report to be prepared by the Chairman. This draft report was not ready until the 3 rd September 2013, when the Chairman shared it at a meeting of the Commission. Mr. Byron advised the other members of the Commission that he wished to study this draft report before he could agree to its contents. He asked to be allowed to take it away from the Commission but by a majority the Commission refused to allow this draft report to leave the Commission. The majority did agree that Mr. Byron would have a further opportunity to consider the report on the 5 th September 2013 when the Commission next expected to meet to consider this report. On the 5 th September 2013 the Commission, again by a majority agreed that the report would be the final report of the Commission to be presented to the Governor General for onwards transmission to the National Assembly. Mr. Byron did not sign the report, and made it clear that he was not agreeing to any of the alterations to boundaries in St. Kitts being recommended by the Commission. Mr. Amory did sign the report but did not agree to any changes to be made in St. Kitts.
A few days later the claimants sought and obtained an ex parte conservatory order on the basis that there good grounds to believe that a draft proclamation prepared by the Governor General, was being presented to the National Assembly on Monday the 9 th September 2013, for the Assembly to approve and give effect to this final report of the Commission, and that the Governor General was then likely to act in an expeditious manner to make a proclamation to alter certain constituency boundaries. The underlying claim by the claimants was one for judicial review of the Commission decision contained in its final report. At an inter partes hearing, leave was granted to the claimants to proceed on three grounds to seek to quash the report of the Commission, and the conservatory order was also continued to last until the final hearing and determination of the matter.
On this judicial review application, the claimants have argued first that the Commission failed to consider relevant matters and have taken irrelevant matters into consideration when it took into account a preliminary census report when it was clear that the final census report was likely to have marginal shifts which could have significant impact on the ground. As their second ground, they argued that the Chairman of the Commission was tainted with an appearance of bias on the basis that he was, inter alia, a former executive member of the governing St. Kitts Nevis Labour Party, a political activist in the past, and had a number of commercial contracts with the government for various projects. As their third ground, the claimants primarily argued that the Commission, having embarked on a process of consultations, had failed to consult fairly and properly when it failed to provide its provisional views to the consultees and to ask for their responses.
The respondents have resisted this claim vigorously, arguing that the Commission had properly considered the factors set out in Schedule 2 of the...
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